Leonard v. Security Bldg. Co.

• Decision Date: 31 December 1913
• Citation: 179 Mo. App. 480,162 S.W. 685
• Parties: LEONARD v. SECURITY BLDG. CO.
• Court: Missouri Court of Appeals

162 S.W. 685

179 Mo. App. 480

LEONARD v. SECURITY BLDG. CO.

St. Louis Court of Appeals. Missouri.

December 31, 1913.

1. JUSTICES OF THE PEACE (§ 167)—APPEAL— RIGHT TO DISMISS SUIT.

Plaintiff, appealing to the circuit court from the justice court, had the right to dismiss his cause of action pending defendant's motion to dismiss the appeal, under Rev. St. 1909, § 1980, providing that plaintiff at any time before his suit is finally submitted to the jury or to the court sitting as a jury, or to the court, may dismiss or take a voluntary nonsuit.

2. JUSTICES OF THE PEACE (§ 162)—APPEAL— SUSPENSION OF JUDGMENT.

An appeal from the judgment of a justice of the peace does not vacate the judgment altogether, but merely suspends it pending the appeal.

3. JUSTICES OF THE PEACE (§ 167)—APPEAL— DISMISSAL OF SUIT—EFFECT.

Where plaintiff appeals to the circuit court from an adverse judgment in justice's court, and then exercises his right to dismiss the cause or take a nonsuit, the case is taken out of court and the judgment of the justice is thereby vacated.

4. APPEAL AND ERROR (§ 151)—DECISIONS REVIEWABLE—DISMISSAL—"AGGRIEVED."

No appeal will lie from the exercise of plaintiff's right to voluntarily dismiss or take a nonsuit pending his appeal to the circuit court from the justice's court; Rev. St. 1909, § 2038, providing that any party to the suit aggrieved by any judgment of any circuit court in any civil cause may appeal, not giving to the defendant any such right of appeal, since he cannot be said to be "aggrieved."

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by George A. Leonard against the Security Building Company. From an order of the circuit court on appeal from a justice's court, granting plaintiff leave to dismiss his suit, defendant appeals. Dismissed.

Chas. E. Morrow, of St. Louis, for appellant. John A. Gilliam and J. Butler McCormick, both of St. Louis, for respondent.

ALLEN, J.

This action was originally instituted before a justice of the peace, and is for personal injuries alleged to have been suffered by plaintiff through the negligence of the defendant. Upon a trial before the justice, the defendant had judgment, and the plaintiff prosecuted his appeal to the circuit court. Thereafter the defendant moved to dismiss plaintiff's appeal upon the ground of the insufficiency of the appeal bond given by plaintiff; it being averred that the surety thereon was insolvent. Thereafter, and before the court had acted upon defendant's motion to dismiss, plaintiff asked leave to dismiss his cause of action. The court permitted plaintiff so to do, and the defendant thereupon appealed to this court.

The only question involved is whether the plaintiff, after having suffered defeat in the justice court, and having appealed therefrom, had the right to dismiss his cause of action during the pendency of appellant's motion to dismiss the appeal. Appellant urges that plaintiff could not at this stage of the case dismiss his cause of action; that, having been vanquished in the justice court, in a forum of his own choosing, he could not escape the consequences of the judgment against him there, and deprive the defendant of the benefit thereof by appealing to the circuit court, and there dismissing his cause of action, in the face of a motion pending to dismiss the appeal for failure to give a sufficient appeal bond as required by statute.

In Lee v. Kaiser, 80 Mo. 431, plaintiff brought suit before a justice of the peace, and the trial, as here, resulted in a judgment for the defendant. Plaintiff appealed to the circuit court, but failed to give timely notice of the appeal in accordance with the statute then in force. The defendant moved for an affirmance of the judgment, and while this motion was pending the trial court permitted plaintiff to take a nonsuit. The Supreme Court held this to be proper, saying that the judgment of the justice had been vacated "by the appeal and dismissal of the suit," citing Turner v. Northcut, 9 Mo. 251; Moore v. Otis, 18 Mo. 118; Town of Carrollton v. Rhomberg, 78 Mo. 547.

In Holdridge v. Marsh, 28 Mo. App. 283, this court, following Lee v. Kaiser, supra, held that a plaintiff who had appealed from a judgment of a justice had the right to take a voluntary nonsuit or to dismiss his action.

In Pullis v. Pullis, 157 Mo. 565, 57 S. W. 1095, upon which appellant relies, the matter under consideration was the effect of the dismissal of a defendant's appeal to the circuit court from a judgment of a justice of the peace for failure to give an additional bond. It was held that the circuit court entered the only judgment that it had the power to enter, viz., that of the dismissal of the appeal, and that this left the judgment of the justice of the peace in full force. The opinion in that case, however, deals with several questions not directly involved therein, and discusses the cases of Turner v. Northcut, Town of Carrollton v. Rhomberg, and Lee v. Kaiser, supra. And it is pointed out that not only was it held in the latter case that the plaintiff could dismiss his action in the circuit court and thereby vacate the judgment of a justice of the peace, but that such had been held to be the privilege of a plaintiff even where the defendant had filed a counterclaim or set-off before the justice and obtained judgment thereon, upon the theory that the dismissal of plaintiff's case carried the set-off or counterclaim with it (citing cases). It is then pointed out that a new section (1872) was added to the Revised Statutes of 1889 (now section 1878, Rev. St. 1909), providing that a dismissal or nonsuit should not carry with it a set-off or counterclaim of the defendant, but that the same should be proceeded with as if it were a suit instituted by the latter. A further change in the statutory provisions relative to notice of an appeal from a justice of the peace is noted as having taken place subsequent to the decisions in Lee v. Kaiser, and the cases there cited; and it is pointed out that what is now section 7580, Rev. St. 1909, was not referred to in those cases, though the same had been upon our statute books since 1835. And, referring to the latter, the court said: "Here is a distinct provision of the law which authorizes an appeal to be dismissed on motion of the appellee unless the appellant takes the steps thereby permitted. If such appeal is so dismissed, the judgment of the justice must thereby be revivified."

In the instant case learned counsel for appellant points to this language of the Supreme Court in Pullis v. Pullis, supra, as authority for the proposition that an appeal from the judgment...